R.C. Mitter, J.
1. This appeal is on behalf of the auction purchasers (who are also the decree-holders) and is directed against the order of the Subordinate Judge of Asansol, dated 26th June 1933, by which he has set aside the auction sale. The appellants before us lent to one Pran Kissen Chatterjee, father of respondents 1 to 3, Karali Prosad Chatterjee, father of respondents 4(a) to 4(c) and to the other respondents large sums of money on the security of immovable properties, mostly coal lands. On 9th December 1925 they obtained a preliminary decree for sale of the mortgaged properties, the amount due to them up to the day of grace being found to be Rs. 2,66,783-13-6. The final decree for sale was passed on 9th June 1926, the mortgaged properties were put up for sale on 9th November 1926, and were purchased, some by the decree-holders and some by a stranger, at the price of Rs. 20,000. An application to set aside the said sale by the judgment-debtors was dismissed for default by the Subordinate Judge, and while an appeal was pending in the Court the decree-holders obtained on 21st May 1927 a personal decree against the judgment-debtors under the provisions of Order 34, Rule 6, Civil P.C. The appeal preferred by the judgment-debtors to this Court ended in a consent order, but the judgment-debtors having failed to carry out the terms of the said order the sale of the mortgaged properties was confirmed in terms of the said order.
2. On 9th August 1927 the appellants put in an application in the usual tabular form for execution of the personal decree. They prayed for attachment and sale of a decree obtained by judgment-debtor 3 against a third person and
for realisation of the balance by attachment and sale of the movable and immovable properties belonging to the other judgment-debtors.
The application further stated that:
The boundaries of the said movable and immovable properties will be filed by them in Court after attachment of the aforesaid decree.
3. There can be no doubt that the application for execution was drafted in a loose way. It was registered on 9th August 1927, although no inventory of movable properties and no list of immovable properties had been supplied by the decree-holders. After the decree mentioned in the application for execution had been attached, the decree-holders supplied the list of movable and immovable properties which they wanted to sell. This was done on 15th September 1927. The executing Court on the same date issued the order of attachment and the attachment of the immovable properties with which we are concerned was actually effected on 29th September 1927. The judgment-debtors took up the position in the lower Court that all processes and notices, as also the sale proclamation has been suppressed by the decree-holder, but before us they have accepted the findings of the Subordinate Judge relating to the attachment and service of sale proclamation. They have however maintained that the notice issued on them for settling the terms of the sale proclamation under Order 21, Rule 66 had been suppressed.
4. On 2nd November 1927 the Court directed the issue of a notice under Order 21, Rule 66. There is a mistake in the paper book. Order No. 4 is dated 2nd November 1927 and not 21st November 1927, and in Order No. 3 the date is 2nd November and not 21st November. The peon reported that he had served the notice on 17th November 1927 (Ex. D pp. 59-60, Part 2). The notice which is a part of the exhibit, but has not been printed, bears a thumb impression mark over the name of Bunwari Buri. On 25th November 1927 the Court being satisfied about the service of the said notice issued the sale proclamation. The sale proclamation was published in December 1927, and one of the judgment-debtors Hrishikesh Chatterjee who was present when the sale proclamation was published in the locale signed the same. His endorsement has been marked Exs. A and A-1, (p. 62, Part 2) and runs as follows: 'I have known the purport of the sale proclamation, Hrishikesh Chatterjee.' He is a member of the same family as the other judgment-debtors and lives with them, and although he has not joined as an applicant with the other judgment-debtors in their application to set aside the sale and has been made a pro forma opposite party, for the obvious reason that he had signed the sale proclamation, he is siding with the other judgment-debtors and helping them. In fact his son was present in Court at the hearing and instructed and helped the other judgment-debtors' pleaders (p. 30, line 46, Part 1, p. 63, line 40 Part 1). On the date fixed for sale (6th February 1928) the judgment-debtors applied for postponement of the sale, but their prayer being not acceded to the sale was held on 8th February 1928 and the properties were purchased by the decree-holders for Rs. 24,300, the amount mentioned in the sale proclamation.
5. On 8th March 1928 the application to set aside the sale was filed. Except for a vague allegation that the petition for execution was 'illegal,' the application proceeds to attack the sale on the ground that the processes and sale proclamation had been suppressed, that the value of the properties had been set out in the sale proclamation at a low figure and that the decree-holders had purchased the same at a very inadequate price. No point was made therein that the descriptions of the properties as given in the sale proclamation were materially defective or by reason thereof, no other bidders were present at the sale or that the price fetched was low. The Subordinate Judge found that the attachment was duly effected, that notice under Order 21, Rule 66 was duly served on the judgment-debtors and the sale proclamation was duly published. He however held that there was material misdescription of the properties in the sale proclamation, the encumbrances on lots 1 and 2 being not set out and the revenue payable for lot 9 being not mentioned; and the sale proclamation was not published at the collectorate. He found that the value of all the lots had been greatly understated in the sale proclamation and they had been purchased by the decree-holders at a great undervalue. He accordingly set aside the sale.
6. The decree-holders auction purchasers who have appealed against the order setting aside the sale have raised two points namely: (i) that the judgment-debtors cannot raise the question of mis-descriptions of the properties in the sale proclamation, or the question of under-valuation, they not having objected at the proper time; (ii) that the value fetched at the sale is adequate. The respondents besides supporting the finding and reasons of the Subordinate Judge have challenged the finding of the Subordinate Judge relating to the service of notice issued under Order 21, Rule 66 and have also urged that the sale was illegal on the ground that the Court had no jurisdiction to allow the application for execution as filed on 9th August 1927 to be amended or supplemented by accepting the list of properties filed on 15th September 1927. We will deal with the contentions raised by the respondents first. In support of the last mentioned contention Mr. Mukherjee has drawn our attention to the provisions of Order 21, Rr. 11, 13 and 17, and to the decision of the Full Bench in Asgar Ali v. Trailakhya Nath Ghose (1890) 17 Cal 631 (F B). He contends that when the defective application for execution was filed, the Court could have directed the decree-holders to supply the list of immovable properties either then and there or within a certain time, but it could not receive the list later on after having registered the application. He further says that the decree-holders could have proceeded against the immovable properties only by filing a fresh application for execution in a tabular form and they not having done so, all the proceedings taken by the Court in bringing the properties to sale are illegal and the sale cannot stand. We are unable to give effect to his contention.
7. In Asgar Ali v. Trailakhya Nath Ghose (1890) 17 Cal 631 (F B) there are no doubt observations to the effect that a defective application for execution cannot be amended after it is registered, but that case is distinguishable. In that case the decree was obtained on 5th September 1876 and the last application for execution could have been filed on 5th September 1888, and not thereafter, by reason of the provisions corresponding to Section 48, Civil P.C. of 1908. On 6th July 1888 the application for execution was filed but without the list of immovable properties against which the decree-holders wished to proceed. On 11th September 1888 the said list was filed and accepted by the Court. If the application for execution had to be considered as filed on the date when the list of immovable properties was filed it was out of time. If however the application filed on 6th July 1888 could be deemed to have been amended only when the list was filed, it was not in time. The controversy therefore centered round only one point, namely whether the Court had power to amend the application at that stage. In the case before us no question of limitation arises, even if the application for execution be deemed to have been filed on the date when the list of the properties was supplied by the decree-holders, and the judgment-debtors could not at the date even insist on a notice under the provisions of Order 21, Rule 22 of the Code. It is on this ground alone we overrule the contention of Mr. Mukherjee, but we may observe that the said observations made in Asgar Ali v. Trailakhya Nath Ghose (1890) 17 Cal 631 (F B) have not met with approval in later cases of this Court: see Naurangilal Marwari v. Charubala Dassi, 1932 Cal 766 at 1268 and 1269. In Gnanendra Kumar Roy v. Rishendra Kumar Roy, 1918 Cal 73 it was held that a supplementary list of properties could be accepted after the application for execution had been registered.
8. We next take up the point about the service of the notice under Order 21, Rule 66 of the Code on the judgment-debtors. On this point the finding of the Subordinate Judge is in favour of the decree-holders and we agree with his finding. The peons' report of the service is Ex. D (pp. 59 to 60, Part 2). At the time of the hearing the peon was dead and his report was proved by another peon who knew his handwriting (Abdur Sukur p. 36, Part 1). The identifier, Ram Protap Misser, was examined (p. 57, Part 1). In his examination-in-chief he substantially corroborated the statements made in the peon's return, but was not cross-examined by the judgment-debtors on the point. Banwari Buri, whose thumb impression is on the notice was also examined (p. 42, Part 1). Much has been made by Mr. Mukherjee of the statement made by this witness that none of the judgment-debtors was present at the outer room of the house at the time of the service, but we cannot attach much importance to this discrepancy. The man was 80 years old and was deposing to events which had occurred about six years before his deposition in Court. We accordingly find in agreement with the Subordinate Judge that the notice inviting the judgment-debtors to be present for enabling the Court to settle the terms of the sale proclamation had been duly served. This leads to the question as to whether the judgment-debtors after the sale could raise the question of misdescription or under-valuation of the properties put up for sale. We are of opinion that they cannot. In T.R. Arunachelam Chetti v. K.R.R. M A.R. Arunachelam Chetti (1889) 12 Mad 19 Sir Richard Couch laid down the law in the following terms:
Therefore, as far as regards the objection that the description was insufficient, which is relied upon, as their Lordships understand as vitiating the sale-for that appeared to be the contention of the counsel for the respondents that objection was not taken until the sale had been completed. The judgment-debtors, knowing as they must have known, what description was in the proclamation allow the whole matter to proceed until the sale is completed, and then ask to have it set aside on account of this, as they say misdescription. It appears to come within what was laid down by this Board in Olpherts v. Mahabir Prosad Singh (1884) 9 Cal 656, that if there is really a ground of complaint, and if the judgment-debtors would have been injured by these proceedings in attaching and selling the whole of the property whilst the interest was such as it was, they ought to have come and complained. It would be very difficult indeed to conduct proceedings in execution of decrees by attachment and sale of property if the judgment-debtor could lie by and afterwards take advantage of any misdescription of the property attached, and about to be sold, which he knew well, but of which the execution creditor or decree-holder might be perfectly ignorant-that they should take no notice of that, allow the sale to proceed and then come forward and say the whole proceedings were vitiated. That, in their Lordships' opinion, cannot be allowed, and on that ground the High Court ought not to have given effect to this objection.
9. The same principle has been applied to cases where the judgment-debtor had attacked the validity of the sale on the ground that the properties had been under-valued in the sale proclamation and purchased, at an under value. If notice under Order 21, Rule 66 had been served on him or he came to know of the terms of the sale proclamation before the sale, ho cannot be allowed to urge the said grounds after the sale. In Saadatmund Khan v. Phul Kaur (1898) 20 All 412 these elements were wanting. In the case before us not only was the notice under Order 21, Rule 66 served duly on the judgment-debtors, but one of them, Hrishikesh Chatterjee, had actually signed the sale proclamation at the time of publishing it after knowing its contents (Ex. A, p. 62, Part 2). It would not be unreasonable to infer that the other judgment-debtors came to know of the terms of the sale proclamation through him. We respectfully agree with the judgment of Suhrawardy, J., in Maharaj Bahadur Singh v. Sachindra Nath Roy, 1928 Cal 348 on this point. In this view of the matter in our judgment, the appeal should be allowed and the sale confirmed. We however record our findings on the remaining points. We disagree with the finding of the Court below that lots Nos. 1 and 2 were at the date of the sale worth Rs. 34,000 or Rs. 35,000. The Subordinate Judge has found that in an encumbered state the said properties were worth not less than three lacs thirty-eight thousand rupees. They are collieries. In the absence of any evidence of how much coal was left in 1928 which could be profitably worked and what was the life of the colliery we do not think that the Subordinate Judge was right in taking the average income of some years as the basis of his valuation. He has found that encumbrances on the property existing at the date of the Court sale amounted to three lacs and four thousand rupees. We do not think it to be a correct method of valuing heavily encumbered properties by taking its value in an unencumbered state and simply deducting therefrom the amount of the encumbrances. Certainly a purchaser would not have paid for the said properties charged to the tune of over three lacs of rupees, a price anything approaching the figure of Rs. 34,000 if their value in an unencumbered state was three lacs and thirty-eight thousand rupees only. We accordingly hold that the valuation of the lots Nos. 1 and 2 in the sale proclamation is not a glaring under-valuation and that the price fetched at the sale is not such as would shock the conscience.
10. Regarding the other lots we hold that there has been under-valuation and that they had been purchased at an under value. Lots Nos. 37 to 39 are however petty lots. The fact that some of the properties had been included in the conveyance executed by Pran Kissen Chatterjee in favour of his daughter-in-law, Binapani (Ex. J (1), p. 19, Part 2) or in favour of Binapani's brother Monoranjan (Ex. J, p. 15, Part 2) had no doubt some effect on the value of these properties, but cannot in our opinion account for the very low value fetched at the sale. By the said conveyance the share of Pran Kissen alone, which was only one-sixth passed, and the intending purchaser could only contemplate a litigation with regard to the sixth share.
11. We also hold that there had been misdescription of lots Nos. 1 and 2, inasmuch as the encumbrances thereon had not been mentioned in the sale proclamation, and of lot No. 9, inasmuch as the revenue was not stated, but there is no evidence to connect the alleged inadequacy of the price fetched with the said misdescription.
12. The appeal is accordingly allowed on the grounds mentioned above. The appellants will have the costs of the lower Court as also of this Court. We assess the hearing fee at five gold mohurs.
13. I agree.